The Eleventh Circuit Court of Appeals recently issued an “unpublished” opinion involving the “companionship services exemption” found at 29 U.S.C. §214(a)(15) and the “economic reality” of who actually employed an elderly caregiver who worked around 105 hours a week. Rodriguez v. Jones Boat Yard, Inc. and Victor Bared, Case No.: 10-15326, July 26, 2011. In the Rodriguez case, Ofelia Bared hired Ms. Rodriguez to work for her, and in exchange for being a caregiver 7 days a week and for working 12-17 hours a day, Ms. Bared agreed to pay Ms. Rodriguez $700 to $1100 per month and give her room and board. Eventually, Ms. Bared’s son (and his company Jones Boat Yard) put Ms. Rodriguez on the company’s payroll and gave benefits to her. Ms. Rodriguez did not actually do anything else nor any work for Mr. Bared or Jones Boat Yard for this arrangement. Then, Ms. Rodriguez was let go and she filed suit for claims which included overtime wage violations of the Fair Labor Standards Act (FLSA).
During the course of the lawsuit, Ms. Rodriguez testified in deposition that she spent “almost 100%” of her time caring for Ofelia Bared – who initially hired Ms. Rodriguez. After the Defendants raised the exception to the FLSA which applies to those who provide “companion services”, Ms. Rodriguez attempted to retreat from her sworn deposition testimony – but the District Court for the Southern District of Florida determined that the affidavit which stated otherwise was a “sham” and refused to consider it – and the Eleventh Circuit Court of Appeals agreed with that ruling.
Left only with the deposition testimony of Ms. Rodriguez that she spent “almost 100%” of her time caring for Ms. Bared, both the District Court for the Southern District of Florida and the Eleventh Circuit Court of Appeal determined that Ms. Rodriguez could not bring an overtime claim under the FLSA because she fell within the “companionship services exemption” found at 29 U.S.C. §214(a)(15).
Both Courts also agreed that neither Mr. Bared nor Jones Boat Yard employed Ms. Rodriguez. They applied the “economic reality of the relationship between the parties” to reach their decisions, which involved considering whether either Defendant, as an employer:
(a) had the power to hire and fire the employee;
(b) supervised and controlled the employee’s work schedule and conditions of employment;
(c) determined the rate and method of payment; and
(d) maintained employment records.
The Eleventh Circuit considered all of the record evidence and noted that it was “undisputed” that Ms. Rodriguez “did not perform any work for Victor or Jones” and that there was no evidence that she was hired or fired by them.
For those two reasons (that neither Defendant employed Ms. Rodriguez and that the “companionship services exemption” applied), the Eleventh Circuit Court of Appeals affirmed the trial court’s decision to grant a summary judgment to the Defendants.
Ms. Rodriguez, unfortunately, did not recover the minimum wages or overtime wages she sought based on the rulings from both Courts. But, the upside is that Ms. Rodriguez does not owe attorneys’ fees to the Defendants – at least under the FLSA.